Citation Nr: 0607049
Decision Date: 03/10/06 Archive Date: 03/23/06
DOCKET NO. 96-35 434 ) DATE
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Received on appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to vocational rehabilitation training under the
provisions of Chapter 31, Title 38, United States Code.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The veteran had verified active duty from January 1975 to
July 1975 and from January 1986 to July 1994. He also had a
period of active duty for training (ACDUTRA) from February
1962 to 1968 as a member of the Army National Guard and
additional unverified periods of inactive duty for training
(INACDUTRA) and ACDUTRA as a member of the U.S. Navy
Reserves.
Initially, this case came before the Board of Veterans'
Appeals (Board) on appeal from a May 1997 decision of the
Department of Veterans Affairs (VA) in Jacksonville, Florida.
The case was transferred to the Regional Office (RO) in a St.
Petersburg, Florida. In November 1997, the veteran testified
at an RO hearing; a copy of the transcript is associated with
the record.
In a December 1999 remand, the Board deferred action on the
above issue pending development on other issues that were on
appeal before the Board at that time.
In June 2001, the Board remanded the appeal for additional
development to include consideration of the impact of the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2005)); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2005). In December 2004, the RO assigned a 100
percent rating for bronchial asthma with chronic obstructive
pulmonary disease (COPD), effective from December 16, 2002.
Subsequently, in January 2005, the veteran withdrew his
appeal to all of the remaining issues on appeal except for
his vocational rehabilitation claim.
In December 2005, the veteran failed to appear for a Central
Office Board hearing; thus, his request for a hearing is
deemed withdrawn. 38 C.F.R. § 20.704 (2005). The case now
is before the Board for additional appellate consideration.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.
2. The veteran served on active duty from January 1975 to
July 1975 and from January 1986 to July 1994.
3. The veteran has established service connection for
bronchial asthma with COPD, rated 100 percent disabling;
hypertension, rated 10 percent disabling; and sensorineural
hearing loss in the right ear, rated noncompensably
disabling; for a combined disability rating of 100 percent.
4. The veteran has been continuously employed as a VA
hospital chaplain since April 1995.
5. As the veteran has overcome the effects of any impairment
of employability through continuous employment in an
occupation consistent with his pattern of abilities,
aptitudes and interests, he does not have an employment
handicap.
CONCLUSION OF LAW
The criteria for entitlement to vocational rehabilitation
training under the provisions of Chapter 31, Title 38, United
States Code, have not been met. 38 U.S.C.A. §§ 3100, 3101,
3102, 5107 (West 2002); 38 C.F.R. §§ 21.40, 21.51, 21.52
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As noted above, in June 2001, the Board remanded the case for
notice and development consistent with the VCAA. This law
describes VA's duty to notify and assist claimants in
substantiating a claim for VA benefits. But the notice and
duty to assist provisions of the VCAA are relevant to Chapter
51 of Title 38 of the United States Code but do not apply in
vocational rehabilitation benefit cases, which are governed
by Chapter 31. See Barger v. Principi, 16 Vet. App. 132, 138
(2002). Even so, the Board observes that, in April 2005, VA
met with the veteran to review his new medical information
and current employment status, which showed that the veteran
was still employed in the same position for which he was
initially found to have overcome the effects of any
impairment of employability and, thus, VA again notified the
veteran that he does not have an employment handicap under
the law and regulations. Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (where the law and not the evidence is dispositive
the Board should deny the claim on the ground of the lack of
legal merit or the lack of entitlement under the law);
VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to
provide notice of the information and evidence necessary to
substantiate a claim where that claim cannot be substantiated
because there is no legal basis for the claim or because
undisputed facts render the claimant ineligible for the
claimed benefit).
Analysis
The purpose of vocational training under Chapter 31, Title
38, United States Code, is to enable veterans with service-
connected disabilities to achieve maximum independence in
daily living and, to the extent feasible, to become
employable and to obtain and maintain suitable employment.
38 U.S.C.A. § 3100 (West 2002);
38 C.F.R. § 21.1 (2005).
The applicable law and VA regulations provide that a person
shall be entitled to a rehabilitation program under Chapter
31 if such person is a veteran who has a service-connected
disability rated at 20 percent or more that was incurred or
aggravated in service on or after September 16, 1940, and is
determined by VA to
be in need of rehabilitation because of an employment
handicap. 38 U.S.C.A.
§ 3102(1)(A), (B) (West 2002); 38 C.F.R. § 21.40(b) (2005).
Alternatively, a person is entitled to a rehabilitation
program under Chapter 31 if such a person is a veteran who
has a service-connected disability rated at 10 percent or
more that was incurred or aggravated in service on or after
September 16, 1940, and is determined by the Secretary to be
in need of rehabilitation because of a serious employment
handicap. 38 U.S.C.A. § 3102(2)(A), (B) (West 2002); 38
C.F.R. § 21.52 (2005).
An "employment handicap" means an impairment, resulting in
substantial part from a disability described in section
3102(1)(A) of Chapter 31, of a veteran's ability to prepare
for, obtain, or retain employment consistent with the
veteran's abilities, aptitudes, and interests. 38 U.S.C.A. §
3101(1) (West 2002); 38 C.F.R. § 21.51(b) (2005). Impairment
is defined as restrictions on employability caused by the
veteran's service-connected and nonservice-connected
disabilities, negative attitudes toward the disabled,
deficiencies in education and training, and other pertinent
factors. 38 C.F.R. § 21.51(c)(1).
An employment handicap does not exist when any one of the
following conditions is present:
(i) The veteran's employability is not
impaired; this includes veterans who are
qualified for suitable employment, but do
not obtain or retain such employment for
reasons within their control;
(ii) the veteran's employability is
impaired, but his or her service-
connected disability does not materially
contribute to the impairment of
employability; or
(iii) the veteran has overcome the
effects of the impairment of
employability through employment in an
occupation consistent with his or her
pattern of abilities, aptitudes and
interests, and is successfully
maintaining such employment.
38 C.F.R. § 21.51(f)(2).
Evidence of the consistency of interests with training and
employment may be based on the veteran's statements to a VA
counseling psychologist during initial evaluation or
subsequent re-evaluation, the veteran's history of
participation in specific activities; or information
developed by VA through use of interest inventories. 38
C.F.R. § 21.51(c)(4).
The veteran's abilities to obtain or retain employment are
not impaired if he has a history of stable, continuous
employment. 38 C.F.R. § 21.51(e)(2), (3).
The law and regulations also provide that a separate
determination addressing whether a "serious employment
handicap" exists shall be made in each case in which an
employment handicap is found. 38 U.S.C.A. § 3106(a) (West
2002); 38 C.F.R. § 21.52(a). A veteran who has been found to
have an employment handicap shall be held to have a serious
employment handicap if he has: (1) A neuropsychiatric
service-connected disability rated at 30 percent or more
disabling; or (2) any other service-connected disability
rated at 50 percent or more disabling. 38 C.F.R. § 21.52(c).
In this case, the Board finds that since of the veteran's
bronchial asthma with COPD has been rated more than 60
percent disabling since January 1998, and is now rated as 100
percent disabling, he would normally meet the requirements
for a serious employment handicap and be eligible for Chapter
31 benefits under the provisions of 38 U.S.C.A. § 3102(1)(A),
(B); 38 C.F.R. § 21.40(a). Even so, the Board must conclude
that an employment handicap does not exist because the
veteran has overcome the effects of any impairment of
employability through employment in an occupation consistent
with his pattern of abilities, aptitudes and interests, and
is successfully maintaining such employment. Since April
1994, the veteran has been continuously employed as a VA
hospital chaplain. Where the evidence shows no impairment of
employability or that the veteran has overcome the effects of
any impairment of employability, the regulations specifically
provide that an employment handicap does not exist. 38
C.F.R. § 21.51(f)(2).
Together the vocational rehabilitation reports dated in May
1997 and April 2005 show that the veteran now has a combined
disability rating of 100 percent for his service-connected
respiratory, hypertensive, and impaired hearing disorders;
that he has a masters degree in Theology and pursued
doctorial studies at a divinity school between 1988 and 1990
and had clinical pastoral education at the VA Medical Center
in Jacksonville, Florida; and that he has been a VA hospital
chaplain since April 1995. Moreover, the VA counselors
informed the veteran, in May 1997 and April 2005, that he was
suitably employed, had overcome the effects of the impairment
of employability through employment in an occupation
consistent with his pattern of abilities, aptitudes and
interests, and is successfully maintaining such employment,
and as such the evidence of record did not support a
determination that the veteran had an employment handicap and
thus he was ineligible for vocational rehabilitation benefits
under Chapter 31.
A separate determination addressing whether a "serious
employment handicap" exists is not made when an employment
handicap has not been found. 38 U.S.C.A. § 3106(a) (West.
2005); 38 C.F.R. § 21.52(a), (b). A veteran cannot have a
serious employment handicap in the absence of an employment
handicap. Id.
The Board acknowledges the veteran's November 1997 testimony
that part of his job requires him to speak for about 45
minutes at a time about three days a week doing addiction
counseling and addiction groups and also religious sermons;
that sometimes about half way through a sermon or talk like
that, he starts to wheeze; and that, in order to prevent that
from happening, he had been using his inhalers right before
an event so that he would be cleared up and would not have a
problem or has taken coffee with him to avoid the wheezing
problems. He also indicated that going up and down stairs is
more difficult as he makes his rounds during the day. As a
result, he was having to use both his sick and annual leave
because of his asthma and COPD and wanted to get into
something a little more sedentary, perhaps psychology, or
counseling of some type, where he could do testing and/or be
able to interact with the patient and not have to do all the
speaking. The veteran indicated that his hypertension was
under control and he did not believe that it, or his heart
condition, was affecting his employment. He thought that, if
his health continued to deteriorate, at some point, probably
within three years, it might prevent him from being able to
work and go to school.
An October 2003 VA examiner noted that the veteran was
suffering from poorly-controlled asthma, which was not
responding to his current nebulizer regimen. But the
examiner added that, with the addition of more medication and
proper use of his nebulizers, the veteran's asthma could be
better controlled. Similarly, the examiner found that the
veteran's hypertension was also under poor control and might
require a further increase in his medication. On outpatient
examination in March 2005, the veteran's lungs were noted to
be clear, his heart had regular rhythm and rate with no
murmurs and his blood pressure reading was 137/87. The
assessment was hypertension, COPD, asthma, and sleep apnea
(for which he had been given a CPAP machine in March 2004).
The plan was for him to return for another checkup in six
months. At a July 2005 VA examination, the veteran's blood
pressure reading was 180/122; his chest was clear to
auscultation without the presence of cor pulmonale, right
ventricular hypertrophy or pulmonary hypertension; and his
heart rate and rhythm was without gallops, rubs, or murmurs.
The veteran indicated that his response to medications is
good; however, he uses them now more often because the
response is less.
Although the veteran desires to pursue further training in
psychology, management, or counseling, nonetheless, the
veteran does not meet the eligibility requirements and there
is no evidence contradicting the VA counselors' opinions
that, although his service-connected disabilities may
materially contribute to some impairment in employability,
the veteran has independence in daily living, and is, by his
own testimony and statements and by the opinion of two VA
counselors, capable of maintaining his current employment.
At an April 2005 counseling appointment, the veteran
indicated that his medical condition is stable and has not
progressed as fast as he had initially expected, that he is
no longer on oxygen at night; that he continues to take
several medications for his asthma and keeps an inhaler on
him at all times; that he works with three other chaplains
and that they rotate on-duty calls; that he is not in danger
of losing his job nor has he looked for work elsewhere; and
that he is able to perform the essential duties of his
position; and that he is not in an environment, which would
aggravate his condition. The veteran felt that he would be
able to manage something like a construction company or
counseling. The April 2005 VA counselor discussed that in
both cases the veteran would be meeting with just as many
people and the stress level would be much higher not to
mention that the environment in managing a construction
company might aggravate his condition. Currently, the
veteran works in a hospital setting, which maintains a clean
environment, free of dust, mold and other airborne diseases.
In light of the above facts, the April 2005 VA counselor
found that the veteran had been able to maintain his current
position, for which he was initially found to have overcome
any employment handicap. Chapter 31 benefits are not
intended to guarantee that a veteran will get the position he
desires. 38 U.S.C.A. § 3100; 38 C.F.R. § 21.1.
In light of the foregoing, the Board concludes that the
veteran's service-connected disabilities are not of
sufficient magnitude to establish eligibility for Chapter 31
benefits and do not prevent him from obtaining or retaining
employment consistent with his abilities, aptitudes, and
interests. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.51(f)(2). An
employment handicap has not been shown as contemplated under
38 U.S.C.A. § 3102. Where, as here, the law and not the
evidence is dispositive, the appeal must be terminated or
denied as without legal merit. See Sabonis, 6 Vet. App. at
430.
ORDER
Entitlement to vocational rehabilitation training under the
provisions of Chapter 31, Title 38, United States Code, is
denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs